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United States v. Fazio

United States Court of Appeals, Second Circuit

October 22, 2014

UNITED STATES OF AMERICA, Appellee,
v.
ANTHONY FAZIO, SR., AKA SEALED DEFENDANT 1, JOHN FAZIO, JR., AKA SEALED DEFENDANT 3, ANTHONY FAZIO, JR., AKA SEALED DEFENDANT 2, AKA ANTHONY FAZIO, ERNEST ORGEL, Defendants-Appellants

Argued: September 20, 2013.

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[Copyrighted Material Omitted]

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Defendants appeal their convictions after a trial in the United States District Court for the Southern District of New York (Forrest, J.), on numerous grounds. Defendants were convicted of various crimes, including extortion, associated with their receipt of allegedly illegal labor payments. In this opinion we address the district court's (1) ruling that permitted evidence of defendants' ties to organized crime; (2) denial of a requested jury charge that the " fear" element of extortion cannot be satisfied bye a threat of loss of economic advantage to which the victim was not legally entitled; and (3) dismissal of a juror during the trial. We find no error in these rulings and affirm the judgment of the district court.

We have considered all the remaining arguments raised by defendants and find them to be without merit.

RICHARD WARE LEVITT, Levitt & Kaizer, New York, NY, for Defendant-Appellant Anthony Fazio, Jr.

MARC FERNICH, New York, NY, for Defendant-Appellant Anthony Fazio, Sr.

RONALD P. FISCHETTI, PHYLLIS A. MALGIERI, Fischetti & Malgieri LLP, New York, NY, BARRY A. BOHRER, ELI J. MARK, Schulte Roth & Zabel LLP, New York, N.Y. for Defendant-Appellant John Fazio, Jr.

CHI T. STEVE KWOK (Peter M. Skinner, Brian R. Blais, Justin S. Weddle, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y. for Appellee.

Before: WALKER, LEVAL, WESLEY, Circuit Judges.

OPINION

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John M. Walker, Jr., Circuit Judge:

Anthony Fazio, Sr. (" Fazio Senior" ), Anthony Fazio, Jr. (" Fazio Junior" ), and John Fazio, Jr. (" John Fazio" ), who were officers in Local 348 of the United Food and Commercial Workers International Union, demanded that business owners that employed Local 348 members make payments to the Fazios to ensure a good working relationship with the union. At trial, the government produced evidence from which the jury could conclude that the Fazios' demands for money were accompanied by threats of economic and physical harm. All three defendants were indicted for: (1) racketeering conspiracy in violation of 18 U.S.C. § 1962(d); (2) racketeering in violation of 18 U.S.C. § 1962(c); (3) extortion conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951; and (4) receiving unlawful labor payments in violation of 29 U.S.C. § 186(b)(1), d(2). Fazio Senior and John Fazio were also indicted for conspiracy to commit money laundering in violation of the Hobbs Act, 18 U.S.C. § 1956(h). Fazio Senior was additionally indicted for witness tampering in violation of 18 U.S.C. § 1512(b)(1), (2). After a jury trial in the United States District Court for the Southern District of New York (Forrest, J.), each defendant was convicted of all of the crimes with which he was charged. The district court sentenced Fazio Senior, Fazio Junior, and John Fazio, respectively, to imprisonment terms of 151 months, 60 months, and 135 months.

On appeal, the Fazios challenge their convictions on a variety of grounds. In this opinion we address three errors appellants assert were made by the district court: (1) the ruling admitting evidence of defendants' ties to organized crime; (2) the denial of a requested jury charge that the " fear" element of extortion cannot be satisfied by a threat of loss of economic advantage to which the victim was not legally entitled; and (3) the dismissal during trial of a juror. For the reasons stated below, we find no error and affirm the judgment of the district court.

Defendants' remaining arguments are without merit.

DISCUSSION

I. Background

From at least some time in 1989, up through and including June 2011, the Fazios, who ran Local Union 348, participated in a scheme to enrich themselves by extorting payments from business owners whose employees were members of the local. At trial, witnesses testified that either before or shortly after they entered into a union contract with Local 348, one or more of the defendants would tell them that, yearly, and sometimes twice yearly, side payments to the Fazios would be required to ensure a good working relationship. Because of the Fazios' collusive relationship with the employers with which they were supposed to be negotiating at arm's length, Local 348 had a reputation for being a " sweetheart" union. However, the Fazios also cultivated a reputation that they and Local 348 were connected to organized crime. And the Fazios used implicit and explicit threats of economic and physical harm to extort the side payments.

Witnesses testified that they felt that they had no choice but to accede to the Fazios' demands for money. For example, one employer whose employees were members of Local 348, Leon Hofman, testified

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that when he declined John Fazio's demand for around $7,500 to $10,000 per year, John Fazio stated something to the effect of " don't screw around with me." Hofman testified that he became worried about his and his family's safety and started making the payments. Another employer, Elliot Betesh, testified about an incident where people were blocking trucks from delivering merchandise to his warehouse. Betesh said that the group blocking the delivery trucks left a card with Fazio Senior's name on it. Betesh said that ...


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